Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Trade Remedy Efforts

Just as the Steelworkers got creative with their use of a 421 proceeding (see

 

With the petroleum wax candles case, we see Commerce asking the public for comment on how to deal with novelty candles, which up until now were considered excluded from the existing dumping case. Novelty candles are those in the "shape of an identifiable object or with holiday-specific design both being discernable from multiple angles." The reason for this public solicitation is what is claimed to be an extraordinary number of scope determinations that have been requested. For more details, see

 

Another way the domestic industry is fighting back is to go right to the importers. Since data about imported products is readily available for a price from many different commercial sources, domestic industry has taken to writing to those parties and warning them about how they may be violating the antidumping case. What is really being said is, if you continue to do things that we think violate the order, we will come after you.

 

One other interesting development has been the action of some petitioners once their initial case is successful. Garnering the distain of the government, these member petitioners have approached foreign suppliers and, for a price, have allowed the dumping claims against the companies that pay to expire.

 

China Rubber Dispute for more details), we are also seeing an increasing number of such efforts based on antidumping cases. While these efforts tend to be covered in the general and trade press, there are things going on behind the scenes that are worth mentioning. For example, once an antidumping case is finalized, it is now commonplace for companies to file Scope Determination requests. These are submissions made to the International Trade Commission (ITC) asking it to determine whether the product discussed in the submission does or does not fall within the scope of the existing dumping case. The petitioning party then receives an opinion on the matter. Such an effort is a double-edged sword. The hoped-for outcome is that the ITC responds by saying, no, your product is not part of our case. However, the very fact of filing the Scope Determination request alerts the petitioners to your product and so allows them to seek to expand the scope of their antidumping case. Commerce Notice. One has to wonder how much of this problem has been brought on by Commerce itself in the way it has chosen to administer these cases in general and Scope Determinations in particular.

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